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Monday, June 27, 2016

Can I Be Discriminated Against Because of My Family Responsibilities?

Family Responsibilities Discrimination, which is not yet a state or federal identified law, sometimes  known as “ caregiver discrimination”, is discrimination against employees based on their family-caregiving responsibilities. It involves discrimination against parents of young children, pregnant women, and employees with sick or aging partners or parents. Evidence of such discrimination may consist of: being rejected for hire, harassed, demoted, denied deserved promotion, or wrongfully terminated. 

While there is no federal law or New Jersey State Law that specifically identifies “Family Responsibilities” as a protected class under discrimination law prohibiting this type of discrimination, successful cases may be brought by caregivers if certain facts are present and may involve an assortment of state and federal claims. Under the New Jersey Law Against Discrimination (NJLAD), discrimination against employees based on “familial status” is prohibited.  In addition, lawsuits may be brought against employers who discriminate based on sex stereotyping (Title VII of the Civil Rights Act), pregnancy, plans to become pregnant, and childbirth (The Pregnancy Discrimination Act), and on retaliation for leave-taking to take care of certain sick relatives (The Family and Medical Leave Act)  when certain conditions are present, such as the size of the employer, the number of hours and and length of time the employee has worked for that employer, etc.

There has been a  recent surge of lawsuits alleging  discrimination as a result of the employee’s  family responsibilities. With the trend of the baby boomer generation working into their 50's, 60's and 70's,
 (with attendant older spouses of such employees)  the number of these lawsuits will likely continue to increase. A  statistic  from a research report by the Center for WorkLife Law, a nonprofit research and advocacy group at the University of California Hastings College of the Law found the rapid growth in these types of filed lawsuits to be significant -- 4,400 lawsuits filed in the last decade.  According to this report, Caregivers in the Workplace, Family Responsibilities Discrimination Litigation Update 2016, there has been an increase in  lawsuits have been filed alleging:

  • Biased treatment based on elder care obligations
  • Failure to provide legally mandated accommodations to pregnant women
  • Failure to provide accommodations to nursing mothers
  • Failure to recognize the rights of men to provide spousal, child, or elder care

This research report predicted that these types of lawsuits are likley to increase in number because of the higher percentage of aging parents in the general population, an increasing number of older employees in the workplace,  the increasing lifespan of family members with disabilities and illnesses, and the greater number of men assuming primary caregiving roles in relation to both children and older family members.

This report,  which refers to this collection of caregiver type claims as "FRD" cases which were filed under various federal and state laws such as the FMLA, the  Pregnancy Discrimination Act, Title VII and state statutes such as the NJLAD, found that these types of cases have risen 269% over the last decade in a period when federal employment discrimination cases have decreased  overall. According to their statistics, these caregiver or FRD filings increased 590% between 1998  and 2012 while the number of employment discrimination cases filed in federal courts decreased 13%. According to their statistics:

  • Race discrimination allegations occur in  8% of these cases and how an employer treats an employee who asks for time off for caregiving duties can vary by the employees' race or ethnicity.
  • Lawsuits where the employee needed time off for eldercare have increased 650%.
  • Pregnancy accommodation lawsuits increased 315% and cases involving pregnancy make up the majority of "FRD" claims (67%). 
  • Employees in FRD cases were awarded verdicts and settlements more than double the amount of the previous decade.
  • Employees prevail in these kinds of cases that go to trial  a far higher rate than other employment discrimination cases. 

According to the statistics in this report, over  $477 million nationally was reported in verdicts and settlements between 2006 and 2015 because of claims based on discrimination because of the employee's family responsibilities and these statistics are  underestimated since a large number of settlements are made confidentially and never reported. If you live in New Jersey and find yourself faced with employment discrimination based on your family responsibilities, you should consult with an employment attorney with unquestioned expertise in this field of law.

Of course, not every complaint or lawsuit is valid -- some lawsuits may be frivolous or not meet the threshold requirements to even get to a trial. Even when discrimination has undeniably taken place, however, employee discrimination cases may be difficult to win because employers typically will have have big legal defense firms who will put up an aggressive fight even if they know the employer broke the law because they want to discourage other employees from bringing such claims. This is why it is essential that plaintiffs in such cases have a competent, knowledgeable employment attorney at their side when going through this type of legal dispute. 

Every situation is fact specific, and if you are a person who believes you may be the target of the employer's illegal acts, please contact Hope A. Lang, Attorney at Law, today for a free consultation.

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